Cathey v. State Trooper et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KING DAVID CATHEY,
Plaintiff,
v.
STATE TROOPER, et al.,
Defendants.
Case No. 3:22-cv-00020-SLG-KFR
REPORT AND RECOMMENDATION TO DISMISS FOR FAILURE TO PROSECUTE
On February 1, 2022, King David Cathey, a self-represented prisoner
(hereinafter “Plaintiff”), filed a Prisoner’s Complaint under the Civil Rights Act, 42
U.S.C. § 1983 (hereinafter “Complaint”); a civil cover sheet; a Prisoner’s
Application to Waive Prepayment of the Filing Fee; and an affidavit.1 On June 3,
2022, this Court issued a Screening Order finding that Plaintiff failed to state a
claim upon which relief may be granted, but provided guidance on the Complaint’s
deficiencies, and granted leave to amend.2 The Court’s Screening Order instructed:
“If Plaintiff does not file either an Amended Complaint or a Notice of Voluntary
Dismissal on the Court’s form by July 5, 2022, this case may be dismissed without
further notice to Plaintiff, and he risks receiving a strike.”3
I. 	Failure to Prosecute
As of the date of this Report and Recommendation, Plaintiff has not filed an
Amended Complaint or a Voluntary Notice of Dismissal, as ordered by the Court’s
June 3, 2022 Screening Order.4 For that reason, this Court now recommends that the
1 Dkts. 2–4.
2 Dkt. 7
3 Docket 7 at 16.
4 Dkt. 7.
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Report and Recommendation to Dismiss
Cathey v. State Trooper et al.
3:22-cv-00020-SLG-KFR 2
District 	Court 	dismiss 	Plaintiff’s 	Complaint 	without 	prejudice 	for 	failure 	to
prosecute.
Rule 41(b) of Federal Rules of Civil Procedure permits dismissal due to a
plaintiff’s failure to prosecute or comply with a court order. In deciding whether to
dismiss for failure to prosecute or comply with court orders, a district court must
consider five factors: “(1) the public’s interest in expeditious resolution of litigation;
(2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants;
(4) the public policy favoring disposition of cases on their merits; and (5) the
availability of less drastic sanctions.”5
Here, the first two factors — the public’s interest in expeditious resolution of
litigation and the Court's need to manage its docket — weigh in favor of dismissal.
Plaintiff’s failure to file an amended complaint within the specified timeline suggests
Plaintiff does not intend to litigate this action diligently.6 Further, a presumption of
prejudice 	to 	a 	defendant 	arises 	when 	the 	plaintiff 	unreasonably
delays prosecution of an action.7 	Because Plaintiff has not offered any justifiable
reason 	for 	failing 	to 	meet 	the 	Court’s 	deadline, 	the 	third 	factor 	also 	favors
dismissal.8
The fourth factor usually weighs against dismissal because public policy
favors disposition on the merits.9 	However, “this factor lends little support to a
party whose responsibility it is to move a case toward disposition on the merits but
5 Hernandez v. City of El Monte, 138 F.3d 393, 399 (9th Cir. 1998) (quoting Henderson v.
Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986)).
6 Morris v. Morgan Stanley & Co., 942 F.2d 648, 652 (9th Cir. 1991) (a plaintiff has the
burden “to move toward... disposition at a reasonable pace, and to refrain from dilatory
and evasive tactics”).
7 Anderson v. Air West, 542 F.2d 522, 524 (9th Cir. 1976).
8 See Hernandez v. City of El Monte, 138 F.3d 393, 401 (9th Cir.1998) (reiterating that the
burden of production shifts to the defendant to show at least some actual prejudice only
after the plaintiff has given a non-frivolous excuse for delay).
9 Pagtalunan v. Galaza, 291 F.3d 639, 643 (9th Cir. 2002).
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Report and Recommendation to Dismiss
Cathey v. State Trooper et al.
3:22-cv-00020-SLG-KFR 3
whose conduct impedes progress in that direction,”10 which is the case here. Thus,
although this factor typically weighs against 	dismissal, it does not overcome
Plaintiff’s failure to amend his complaint.
The fifth factor is comprised of three subparts, which include “whether the
court has considered lesser sanctions, whether it tried them, and whether it warned
the recalcitrant party about the possibility of case-dispositive sanctions.”11 	The
Court’s 	Screening 	Order 	provided 	Plaintiff 	guidance 	on 	relevant 	law 	and 	an
opportunity to amend his complaint.12 Further, the Court expressly warned Plaintiff
that his failure to comply with the Court’s order would result in a dismissal of this
action.13
The 	Court cannot move 	this 	case 	toward 	disposition without 	Plaintiff's
compliance 	with 	Court 	orders 	or 	participation 	in 	this 	litigation. 	Additionally,
Plaintiff had adequate warning that dismissal could result from his noncompliance.
The Court finds no other lesser sanction to be satisfactory or effective in this case.14
Accordingly, this Court recommends dismissal for failure to prosecute.
10 In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1228 (9th
Cir. 2006) (citing In re Exxon Valdez, 102 F.3d 429, 433 (9th Cir. 1996)).
11 Conn. Gen. Life Ins., 482 F.3d at 1096 (internal citation omitted).
12 Dkt. 7 (providing guidance about Fed. R. Civ. P. 8, Younger abstention, and the pleading
requirements of a § 1983 claim)
13 Id. at 15-16.
14 See, e.g., Henderson, 779 F.2d at 1424 (a district court need not exhaust every sanction
short of dismissal before finally dismissing a case but must explore possible and
meaningful alternatives) (internal citation omitted); Adriana International Corp. v.
Thoeren, 913 F.2d 1406, 1412 (9th Cir.1990) (explaining despite all the elaboration of
factors, it is not always necessary for the court to impose less serious sanctions first, or to
give any explicit warning); Gleason v. World Sav. Bank, FSB, 2013 WL 3927799, at *2 (N.D.
Cal. July 26, 2013) (finding dismissal under Rule 41(b) appropriate where the court
previously attempted the lesser sanction of issuing an order to show cause and giving the
plaintiff an additional opportunity to re-plead).
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Report and Recommendation to Dismiss
Cathey v. State Trooper et al.
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This dismissal will count as a “strike” against Plaintiff under § 1915(g).15
Plaintiff already has one strike from a prior dismissed lawsuit (Cathey v. Matsu
Property Officer, Case No. 3:17-cv-150-RRB). 	After three strikes, Plaintiff will be
unable to file lawsuits under in forma pauperis status, unless he demonstrates
“imminent danger of serious physical injury.”16 	The Court cautions Plaintiff as to
his strike status.
IT IS THEREFORE RECOMMENDED:
1. 	This action should be DISMISSED WITHOUT PREJUDICE.
2. 	This dismissal should constitute a second strike to Plaintiff under 28
U.S.C. § 1915(g). 	And the Court should instruct Plaintiff that if he receives a third
strike, he will be unable to file future lawsuits in federal court without paying the
filing fee or demonstrating he is in imminent danger of serious physical injury with
any request to waive prepayment of the filing fee.
3. 	The Clerk of Court should issue a final judgement.
DATED this 22nd day of September, 2022 at Anchorage, Alaska.
s/ Kyle F. Reardon
KYLE F. REARDON
United States Magistrate Judge
District of Alaska
NOTICE OF RIGHT TO OBJECT
Under 28 U.S.C. § 636(b)(1), a district court may designate a magistrate
judge to hear and determine matters pending before the Court. For dispositive
matters, a magistrate judge reports findings of fact and provides recommendations
15 Lomax v. Ortiz-Marquez, 140 S. Ct. 1721, 1722 (2020) (holding that Section 1915(g)’s
three-strikes provision refers to any dismissal for failure to state a claim, whether with
prejudice or without prejudice.).
16 28 U.S.C. § 1915(g).
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Report and Recommendation to Dismiss
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to the presiding district court judge.17 A district court judge may accept, reject, or
modify, in whole or in part, the magistrate judge’s order.18
A party may file written objections to the magistrate judge’s order within 14
fourteen days.19 Objections and responses are limited to five (5) pages in length
and should not merely reargue positions previously presented. Rather, objections
and responses should specifically identify the findings or recommendations
objected to, the basis of the objection, and any legal authority in support. Reports
and recommendations are not appealable orders. Any notice of appeal pursuant to
Fed. R. App. P. 4(a)(1) should not be filed until entry of the district court’s
judgment.20
17 28 U.S.C. § 636(b)(1)(B).
18 28 U.S.C. § 636(b)(1)(C).
19 Id.
20 See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).
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